Offensive trademarks ban revoked

[philosslayer]

A US appeals court has struck down a provision of a federal law that barred the registration of offensive trademarks because it violates the First Amendment of the US Constitution.

The decision on Tuesday by the US Court of Appeals for the Federal Circuit in Washington, DC, vacates the refusal by the US Patent and Trademark Office to register the name of the Asian-American rock band, The Slants.

It could also affect the decision by the agency to cancel the trademarks of the National Football League's Washington (deleted).

"We recognise that invalidating this provision may lead to the wider registration of marks that offend vulnerable communities," Circuit Judge Kimberly Moore said in the opinion on behalf of the 12 judges who took part in hearing the case.

"Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others."

https://au.news.yahoo.com/a/30427592/offensive-trademarks-are-ok-in-us/

Bad, bad, bad decision. This opens the way towards the Washington football team (I refuse to say the name) having their trademark restored.

[onenote]

1. I would like to see the DC football team change its name, but not because of government action

I think this is the correct ruling from a First Amendment standpoint.

[Xipe Totec]

4. ^^^ This ^^^

The DC football team should be forced to reconsider based on popular demand.

[nomorenomore08]

22. +2

Public pressure, not government censorship, is the way to do it.

[Adrahil]

26. How is trademark protection a first amendment issue?

The right to say something is not the same as the right to have it protected as a trademark.

[onenote]

34. Because the first amendment doesn't allow the government

to treat speech differently based on its content.

Constitutional law 101.

[jberryhill]

47. Then try airing a cigarette commercial on TV

...and let me know how that works out for you.

Trademark rights are private rights that *restrict* freedom of speech.

It is not a grant of a "right to speak" it is a grant of federal power to make other people shut up.

[Adrahil]

48. Incorrect.

The First Amendment does no such thing. The First Amendment prevents the government from hindering your speech without a compelling reason. It does not, ever, require the government to facilitate your speech by protecting it from infringement.

This is not a First Amendment issue. The government is not required to grant the KKK Trademark protections for tis logos or hateful slogans. It's amazing to me anyone would think so.

[X_Digger]

37. Yup. n/t

[loyalsister]

56. It's not going to happen as long as "politically correct" is part of our lexicon

.

[Katashi_itto]

2. I wonder if i could trademark "pink tacos"

The drugs I am on for foot surgery are giving me ama zing insights

[nomorenomore08]

23. Someone already did. It's a restaurant chain in the Western U.S. n/t

[Katashi_itto]

41. Drat! Thanks

[KamaAina]

3. What's wrong with the name "Washington Potatoes"?

[madinmaryland]

12. Thanks for the amusement!!! As a Cowboys fan, anything about Danny-boys team

is amusing!!

THANKS!!

[nomorenomore08]

24. Is Snyder the worst team owner/manager in all of pro sports?

Then again, Jed York is giving him something of a run for his money these days...

[hobbit709]

44. 4-10.

[GeorgeGist]

5. The stupid runs deep in this country.

[Bonx]

6. Good decision. I love the 1st and hate censorship.

[jberryhill]

8. Failing to grant an exclusive monopoly in words is not "censorship"

You seem not to understand that the grant of federal trademark registration is a restriction of your freedom of speech.

Twenty years ago, you were free to put the word "Google" on whatever you wanted. You no longer have the freedom to do that.

So, I'm curious to know why it is you think that broadening the available verbal subject matter for government grants of private monopolies is an advancement of freedom of speech.

[former9thward]

13. Government was attempting to restrict ordinary business use of speech

because they did not favor that speech. That is a First amendment violation. This decision was correct.

[jberryhill]

15. Not at all

The government does not have the power to do that.

You can't get a trademark on a lot of things.

You cannot get a trademark on the words "dog food" for dog food. What that means is that the use of "dog food" is UNRESTRICTED for use on dog food.

Again, like the other poster, you have this completely backwards. Granting federal trademark registration is a RESTRICTION of speech.

Explain to me how denial of federal registration has an effect of restricting speech?

You have the right to use whatever speech you want. Federal trademark registration is a presumptive right to restrict everyone else's speech.

[onenote]

35. Do you think it would be constitutional for the government

to refuse to grant a trademark to Ben and Jerry's because they don't like their politics?

[jberryhill]

38. Of what mark?

Again, there is nothing that prevents them from using any expression they like as a mark.

"Having a trademark" is not the same thing as "obtaining federal registration" of the mark.

There seems to be this pervasive notion that this involves restriction of speech.

First, there is no Constitutional right to a trademark in the first place. The Lanham Act does not arise from the patent and copyright power, but is based on the Congressional power to regulate interstate commerce. It is a grant of an exclusive private that *restricts* the speech of others in commercial contexts.

It's about whether you, me, and every other American want to occupy the time of our federal judiciary in enforcing someone's right to sue someone else over "N----r Kicker" brand boots.

[onenote]

45. I'll restate: would it be constitutional for the government to refuse

to register the trademark, and afford the protection that adheres to a trademark, to Ben and Jerry's ice cream because they don't like B&J's politics?

[jberryhill]

46. You clearly do not understand the issue here

No it would not be.

Is it constitutional for states to refuse to put certain words on vanity license plates? Yes or no?

[Katashi_itto]

42. Agree, "Wizards of the Coast" tried to trademark "Nazis"

it didn't work.

[former9thward]

53. You are making a libertarian argument.

I'm not a libertarian. Next you will be arguing against patent law...

[jberryhill]

54. Rofl

Do you know what I do for a living?

I'm not arguing against trademark law. But to mistake a mechanism for restricting speech - which it is - for a mechanism promoting speech, is bass ackwards.

[nomorenomore08]

25. In general, I would agree with you.

I just don't like the idea of the federal government altering trademark law to punish a "politically incorrect" (read: racially insensitive) football team.

[jberryhill]

32. "The idea of the federal government altering trademark law"

The US did not even have a federal trademark law until the late 1800's, but it was largely supplanted by the Lanham Act passed in the 1940's.

A primary reason for the Lanham Act, and the registration system it created, was because a guy in Pennsylvania got hit by something sticking out of a train operated by a New York company.

It is a federal statute in the first place. Saying that you don't like the federal government changing trademark law is like saying you want the government to get its hands off Medicare.

Section 2(a), and the provision relation to disparaging marks, has been there since 1946.

[nomorenomore08]

36. Okay, fair enough. I thought it was a matter of singling out the Redskins on purpose, but maybe not.

[madinmaryland]

14. So you would be ok if an NFL team decided to use the name "n*****'s" instead of??

say "Falcons"? First Amendment, right?

[jberryhill]

16. The team can call itself what it wants

This case is not about whether anyone has the right to use disparaging names.

Of course they can use them.

The case is about whether we as a society are going to give them the right to force other people not to use those terms.

[madinmaryland]

18. So you are ok if a team from whatever league calls itself the "C" word or the "N" word

and plasters it on signs all up and down I-95?

Maybe it would be better to see it down I-95 the team called the Washington FUCKERS.

[jberryhill]

19. What makes you think I'm "okay" with such a thing?

I'm "not okay" with all kinds of things which are legal?

Are you "okay with" people picking their nose in public?

Do you know what this case is about?

This case is not about whether Mr. Tam can call his band "The Slants". He is free to do that. The case was about whether Mr. Tam would be granted a federally protected monopoly to prevent anyone else from calling their band "The Slants".

The case was not about, and has nothing to do with, what anyone is allowed to call their business. It was about whether the government can exclude marks deemed disparaging from special exclusive rights.

Did you think the "Black Tail" for magazines case was correctly or incorrectly decided?

[Waldorf]

30. Sure, why not? And if nobody bothers to associate with the team it folds.

[NobodyHere]

7. I wonder if this affects a certain South Park episode

[Chan790]

9. Ugh. Ugh. Fucking Ugh.

As a person of part-Cree descent, this decision infuriates me. At this rate, we're never going to get rid of the most offensive team nickname in major professional sports. What's worse are the people that want to defend it, especially other minorities...I wonder if they'd feel the same way if the team name was a highly-offensive slur for their ethnicity or social minority.

[nomorenomore08]

27. I agree that the name is offensive. And the public should keep the pressure on Snyder as much as

humanly possible, to join the 21st century.

[surrealAmerican]

10. Trademarks are actually a restriction on speech, not free speech.

Maybe the whole idea of granting a trademark, or enforcing one, is against the first amendment.

[jberryhill]

17. You seem to be one of the few people who gets this point

Trademark law is used all of the time to silence unions, critics and activists.

[Nye Bevan]

11. Good.

The Government should not get to decide what is "offensive".

[madinmaryland]

20. Should the FCC be able to decide what is offensive?

[Nye Bevan]

21. No.

But I think it's OK to have regulations restricting the broadcast time of subject matter that is "obscene, indecent, or profane", so that (for example) children are less likely to accidentally watch a rape scene. But if the FCC were to try to ban broadcasters from using the word "Redskins" during a telecast of a football game that would fall foul of the First Amendment.

[nomorenomore08]

28. I agree that such a move by the FCC would be absurd.

And while I would love for Snyder to change the damn name already, I don't think the government should be making "special" laws to specifically punish him or his team.

[GGJohn]

29. Absolutely not.

I'm very glad FCC has no authority, nor say, over cable or sat tv.

[Heeeeers Johnny]

31. I applaud this decision!

You have no... I repeat NO constitutional right not to feel "offended".

If you disagree with ones choice of words, terminology, phrasing, logos, etc, then there are other options
available to persuade that person or business to rethink their decisions.

It's NOT up to the government to decide what is offensive or not.

[LittleBlue]

33. The correct decision. First Amendment should prevail

Nobody should be able to revoke your trademark based on some notion of offense. The Redskins shouldn't be censored into changing their name any more than the Asian American band. Let advocates and fans influence that decision.

[Lee-Lee]

43. I despise the name but the decision was correct

You can't have guidelines for granting or denying a trademark based on how politically acceptable it is.

Trademark restrictions either have to exist outside political influence or not at all.

[Adrahil]

49. Some of the responses in this thread are amazing to me....

The government not granting a trademark IS NOT A SPEECH ISSUE.

The Washington football team has not had trademark protections for its logo and name for some time now. It has not hindered them ONE BIT from using it.

The ONLY thing it does is it prevents them exclusively making profits from it. This is an issue of profit, not speech rights.

[whatthehey]

50. Another Idiocracy documentary bit of prescience

Assuming Fuddruckers still exists, as I haven't seen one in a while, how long can it be before the inevitable Buttfuckers rebranding?

[lame54]

51. Sex Pistols, butthole surfers, dead kennedy's, nashville pussy, the queers...

the circle jerks, black sabbath, joy division-new order, steely dan, porno for pyros, cherry poppin' daddies, bad religion, N.W.A.

[Android3.14]

52. We either have free speech or we don't. I'm glad we do.

The court made the right decision, and, yes, the name is offensive.

That's the price we pay, and one a thinking person realizes is worth the cost.

[Rex]

55. "Fucking a!"(tm)

[yuiyoshida]

57. THE SLANTS